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So what happens when an injured employee returns to work and the employer can no longer accommodate his or her work restrictions? Well, in some cases, the injured worker files a lawsuit for Americans with Disabilities Act violations.

The Union Tribune of San Diego reports that a jury awarded David Flores $520,000 of San Diego’s money after finding that the city had violated the Americans with Disabilities Act in firing the city employee. Mr. Flores, while employed as a mechanical inspector, had sustained an industrial injury in 2006, but had returned to work for the city a few months later. In 2009, his treating physician imposed a restriction against climbing ladders.

The city couldn’t accommodate the restriction, so Mr. Flores was let go.

But then Flores came back with an ADA lawsuit, claiming that San Diego should have still accommodated him despite a medically-imposed work restriction.

Now, bear in mind, your humble blogger is an even humbler Bay Area workers’ compensation defense attorney. As such, he knows little to nothing of litigating ADA matters. But what he is learning again and again is that employers just can’t win in California, and this story is no exception to the rule.

This panel nonsense is getting out of control. In the case of Jose R. Ramirez v. Parking Concepts, the parties went through three different PQMEs before one stuck.

The parties selected a PQME by the notorious process of elimination, but apparently the defense sent a letter directly to the PQME, and even though applicant was copied on it the communication was regarded as “ex parte” and a new panel was ordered.

The parties couldn’t agree on a joint letter to send to the second PQME, so the defense sent its own letter. And so, a third panel was issued.

That time, however, the defense provided the report of the first PQME to the third PQME.

The applicant’s attorney sought fees for all the extra panel work, and submitted a bill for 96.4 hours. The WCJ awarded attorney fees, but reduced the amount to 78.1 hours (at $350 per hour, of course).

In response to defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board denied the defense petition, but returned the matter to the WCJ because “[t]he itemization prepared by applicant’s attorney covers work performed over four years, but does not on its face establish a nexus between the prohibited communication and ‘attorney’s fees for related discovery.’”

Your humble blogger has no difficulty finding things to grumble about, especially in the world of workers’ compensation. But have we resorted to allowing applicant’s attorneys to bite and re-bite the apple in proving something as simple as hours spent working on a case?

Perhaps applicants’ attorneys have no need to keep track of hours spent working on cases – this is understandable given the fact that their recovery is a percentage of their clients’. If an applicant’s attorney cannot state, with specificity, how much time was spent working on which task in which file, there is probably a good reason for that – the attorney just doesn’t know and is giving a vague estimate.

If such is the case, why should the defense be expected to pay the bills? Should the defense pay for the lights? The secretary? Perhaps the catering?

In the Ramirez case, the applicant’s attorney had a chance to present accurate, detailed bills which specifically stated the nature, duration, and date of the work performed as part of additional discovery due to the panel disputes. Instead, the WCJ received and reduced a vague bill, and even after this reduction it was not detailed enough for the WCAB.

Applicant’s counsel had an opportunity to “develop the record” as to the bills, but didn’t. That should have been the end of it.

Welcome back from the long weekend! As we head to the water-coolers, coffee-machines, and breakfast-conference rooms to swap stories of burgers grilled and items purchased at discount, perhaps there is room to say a word or two about liens as well?

The word around the proverbial workers’ compensation water cooler is that the new lien regulations have been distributed to the workers’ compensation judges (but not yet effective). Beware, lien claimants, your day is upon you!

Liens must have ADJ case numbers if the application has already been filed – so lien claimants will have to do their homework!

Lien claimants will be required to appear at lien hearings and be prepared to discuss the case.

Hopefully these regulations will take effect soon and we will have the opportunity to take them out for a spin. As some southern-California practitioners will tell you, past efforts to deal with the lien problem have met with the fatal mark of “local rules.” State-wide regulations of this sort are a good step towards solving the problem.

A long time ago, you humble blogger’s great grandfather took him fishing. Grandpa always liked to do things the old way, and fishing often included grenades or dynamite and a net. One particular trip, while grandpa went to get more explosives, your bright-eyed and bushy-tailed blogger pulled the net in from the water to find a single golden fish stuck flopping around. As your blogger approached the golden fish, he heard it speak perfect French. But, since your blogger doesn’t speak French, the two communicated in a relatively rudimentary form of English.

The fish offered to instill in me absolute and total medical knowledge, to the level of a seasoned practitioner, if I would just let it go. As the fish was speaking and, on top of that, spoke the lofty and refined language of French, I did not doubt its magical abilities. But, I thought to myself, I’m going to go to law school – when will I ever need medical knowledge?

As I think back to the fish dinner my grandpa and I shared that night, I am filled with regret that I chose a mediocre meal over the knowledge necessary to tackle the AMA guides.

You see, my dear readers, perhaps if I had taken that magical fish up on its scaly and cold-blooded offer, I could comprehend such complex medical language as that found on page 308 of the AMA Guides in section 13.2: “[w]hen injury or illness affects the [central nervous system] several areas of function may be impaired … [t]he most severe of these four categories should be used to determine a cerebral impairment rating.”

As your humble blogger reads the Guides, an impairment rating for sleep disorder cannot be combined with an impairment rating for emotional problems, because only the most severe is rated.

That’s the way the workers’ compensation Judge read the Guides in the case of Alda Mrozek-Payne v. Spectre Air Ground Freight. There, the Agreed Medical Evaluator found applicant had sustained industrially-caused fibromyalgia (the cause of which, according to the U.S. National Library of Medicine is listed as “unknown”). As the Guides do not have a specific section for a condition that is basically widespread bodily pain with an unknown cause, the AMA used chapter 13 (Central and Peripheral Nervous Center) to single out the symptoms of applicant’s impairment and rate them accordingly.

The good doctor rated applicant’s pain, nonrestorative sleep, chronic fatigue, depression and anxiety, cognitive dysfunction, headaches, and temporomandibular joint complaints. Sleep was rated as per Table 13-4, and emotional or behavioral impairment was rated as per table 13-8. But two of the categories listed in section 13.2 are “state of consciousness” and “behavior and mood,” so shouldn’t only the most severe of these impairments be combined with the remaining symptoms?

Well, not according to the Workers’ Compensation Appeals Board. The WCAB was persuaded by the AMA’s reasoning that the individual symptoms all had to be combined. The WCAB also went on to reason that since there was no specific section for fibromyalgia, there was no table or section to rebut. Furthermore, the AME had stayed within the four corners of the Guides and was, after all, an AME, by whom the parties agreed to be bound.

But, come on folks, page 572 of the Guides clearly says that unless “the diagnosed condition [is] one that is widely accepted by physicians as having a well-defined pathophysiological basis” the “examiner should consider the individuals pain-related impairment to be unratable.” (Emphasis in the original.) Fibromyalgia does not have a “well-defined pathophysiological basis” and its cause is unknown – which means it could be genetic, hereditary, or caused by space aliens.

I should have taken that fish up on its offer…

Dear readers, please remember, your humble blogger does not fly off the handle in every case, and the finding here is not completely outrageous – reasonable minds can differ on this point as the Guides do not specifically address fibromyalgia.

While a bright-eyed young undergraduate student, your humble blogger was in a small car collision and experienced some mild stiffness in his neck. Upon seeing a doctor, he was quickly prescribed enough drugs to knock out a medium-sized elephant for the mild and quickly fading pain. Your humble blogger was shocked at how casually heavy medication was given out. Naturally, his more cynical friends suggested filling the prescription and sharing it with them to fuel their philosophy, art history, and political science term papers. What radical thoughts were denied to the world by this blogger’s ethical conduct!

Why am I sharing with you the story of how I avoided a life of drug-dealing to instead enter the even less-admired profession of lawyering (and blogging)?

The good folks at the California Workers’ Compensation Institute have released a new report based on research into drug testing and its costs since 2004. Drug testing in workers’ compensation is on the rise for two reasons – the first is to ensure that applicants are taking the drugs they are prescribed (instead of selling it on the street as your goody-two-shoes blogger was encouraged to do); and the second it to make sure that applicants are not re-injuring themselves while under the influence of non-prescribed drugs.

Much like Utilization Review, the use of drug testing services has mushroomed into a quickly booming industry. CWCI’s study shows a usage growth from 4,012 in 2004 to 186,023 in 2011 (an increase of 4,537%.) The cost of each drug test has also increased from $36 in 2004 to $148 in 2011. California is estimated to have spent $98 million on workers’ compensation drug testing in 2011.

Are you doing drug testing for applicants? Aside from its expense in implementation, you may also be paying the price in effectiveness. For example, is the drug test based on a urine sample? Is the applicant monitored while he or she gives the sample? Is there room for “gaming” the system? Granted, your humble blogger may have seen one too many crime dramas, but if you’re not asking these questions of your drug-test vendor, aren’t you just paying for a middle-man between the applicant and the plumbing?

Often enough, the story is one of a bitter employee fired for reasons unrelated to any injury, as was the case in John Piechota v. SEI Information Technology (a November, 2011 panel decision recently denied review by the Court of Appeal).

Applicant was employed as an information technology consultant and, while flying on business, sustained injury to his left knee roughly a month after being hired. He saw a doctor for this injury but the doctor prescribed no work restrictions. A month later, while on a connecting flight (employer apparently refused to authorize a direct flight or private corporate jet) applicant re-injured his left knee and this time got work restrictions prohibiting travel for three weeks.

Applicant, at the time, was holding on to a $2,400 laptop for his employer which the employer had paid for. When his employer asked for the laptop back, he refused, reasoning that he had e-mailed all pertinent information to a co-worker, so the employer didn’t really “need” the laptop.

After several rebuffed attempts to get the laptop back, including offering to go to applicant’s house to pick it up, the employer decided it was time to let Mr. Piechota go on to do great things. Applicant refused to let anyone come to his house because he was too disabled to come to the door, even though he was already conducting a job search the next day.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board both found applicant to be less than credible – applicant had claimed that he was forced to pay for the laptop computer and his flights, although the documented evidence appeared to favor deeper pockets than his in that regard; there was a reason the employer wanted its laptop back as they had paid for it!

The judicial powers also found that the evidence was very clearly in favor of the defense: applicant had been fired because he refused to return the company’s property. Of particular assistance to the defense in this case was the fact that the discussion of applicant’s uncooperative demeanor was the subject of an e-mail discussion amongst management, and the decision was clearly taken to terminate his employment if he didn’t return the laptop.

Orange County is known for many things. The trees grow tall, the sun shines bright, and giant oranges roam the streets eating smaller oranges in vicious acts of orange-on-orange violence. Well, maybe it’s not known for that, but news in the workers’ compensation world spreads fast that Orange County is facing major problems with its workers’ compensation reserves. The Voice of OC reports that Orange County is now at 60% reserves of predicted workers’ compensation losses over the next 5 years.

Your humble blogger offers his salute to Orange County for this approach – instead of raising taxes on other employers under the County’s domain, the County is instead dipping into its own pockets to make up the gap – like any employer or insurer would do to stay afloat.

Do you think the Incredible Hulk had a compensable workers’ compensation claim? I mean, after all, he was injured in a lab while working with gamma rays and developed noticeable impairment, primarily psychological, which resulted in him being precluded from most available jobs. After all, the things that would turn Dr. Bruce Banner into the smashing angry beast are the types of things we encounter every day in the Workers’ Compensation world.

Nothing so interesting happened with the applicant in the case of Betty Popoff v. Labcorp. If Ms. Popoff developed any super powers after her alleged injury, they are likely limited to recovery in the workers’ compensation system after years of treatment on a non-industrial basis.

Applicant was employed by Labcorp and claimed a cumulative trauma injury from July 2009 to July 2010, manifesting mostly as numbness in her hands (bilateral carpal tunnel syndrome). The workers’ compensation Judge found the injury compensable, and the defense petitioned the Workers’ Compensation Appeals Board for reconsideration.

In denying the defendant’s petition, the WCAB took the position that defendant was making two, mutually exclusive arguments. The first was the statute of limitations – that the applicant should have known that her injury was industrially caused when she went to see a physician on a non-industrial basis in 2004 for numbness in her hands. The second was that the injury was not industrially caused.

But in all fairness to the defense, what about the other side of the coin? If it was industrially caused, then applicant had six years to discover its causation. Furthermore, after six years of treatment for numbness in hands, no physician had ever explored the possibility that the numbness was industrially caused. Yet, somehow, the applicant decides, after six years, that the injury must be industrially caused and files an application.

Nor did the applicant tell the employer about the numbness she experienced in her hands, information that could have helped prevent any permanent disability by adjusting her duties in 2004. After all, the standard is “known or should have known.”

Just thinking about this approach makes your otherwise calm and articulate blogger WANT TO MAKE SMASH!

Some of my dear, loyal readers will recall their humble blogger’s post on “developing the record” and the apparent signal that the Workers’ Compensation Appeals Board was growing weary of applicants getting second and third bites at the apple when they found themselves repeatedly bringing knives to a gun fight.It looks like knives may be back in style.

In a recent panel decision, Jose Luis Tejeda-Garcia v. Modern Group (Company)/Dragon Products, the workers’ compensation Judge gave an order to develop the record, which the WCAB declined to disturb.

Applicant claimed to have sustained injury to his lungs, vocal cords, and associated squamous cell carcinoma while working for defendant as a welder. Defendant took the position that the injury was non-industrial because of applicant’s history of smoking and alcohol use.

The parties brought their dispute to a panel Qualified Medical Evaluator in the specialty of otolaryngology, who suggested that they go to an epidemiologist or oncologist. For some reason, the otolaryngology PQME did not find that the other PQME, the internal medicine specialist/oncologist, was qualified to issue an opinion on the questions of causation and apportionment in this case.

The WCJ found the record to be insufficient, reasoning that neither PQME addressed the issue of industrial aggravation. She specifically rejected defendant’s contention that she was acting “as an advocate for the injured worker.”

Your humble blogger will chime in with his own thoughts at this point. It is not clear who filed the declaration of readiness to proceed, but in either case, the parties conferred at the Mandatory Settlement Conference and elected to proceed to trial. Somehow, applicant must have thought that he could proceed to trial and win – otherwise he could have just told the WCJ at the MSC – we need to develop the record, further discovery is necessary.

But that didn’t happen.

Applicant proceeded to bite at the apple, and the defense was ready and prepared to litigate the case at trial.

What should have happened was one of the following: either the WCJ should have ruled that there was insufficient evidence from which to draw the conclusion that applicant had carried his burden of proving industrial injury, including causation, or the WCJ should have ruled that the burden had been carried, and let the defense challenge the ruling on appeal.

The WCAB should have found the same – that applicant decided to roll the dice and that the trial results should have stuck, one way or another.

Unfortunately, the WCAB did not take action on this one. Oddly enough, the WCAB specifically stated that “defendant’s petition should be denied because it does not demonstrate significant prejudice or irreparable harm.” But significant prejudice was demonstrated in the panel decisions of Bates and Elias.

It’s decisions like these that make your perceptive blogger skeptical when he hears of the need for “judicial economy.” The WCAB could save the workers’ compensation system from having to have two trials and two appeals for every case by telling the applicants that they only get one shot (just like everyone else in the world). Instead, by allowing applicants to “develop the record” after a trial, the WCAB commissioners are inviting more clogs in an over-clogged system. Your humble blogger does not approve.

In any case, folks, keep your eyes open, because the WCAB might just be inclined to let the “develop the record” insanity continue.

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The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 650-235-4008.